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Judge Awards Nearly $800,000 in Case of Fiduciary Breach

Published July 5, 2017 by Brady Cobin Law Group, PLLC

A polo team and polo ponies, photography adventures and a film project were funded by a Harvard-educated attorney, until the family’s case was brought to justice.

The judge in the case of the co-executors against Philip Jay Fetner was not convinced by Fetner’s stance that the late Stephen S. Roszel VI wished to fund an expensive lifestyle that included printing a second edition of his book, maintaining a polo team and producing a movie.

Fauquier Now reports, in “Judge awards family $800k in fiduciary breach case,” that Roszel, who died at age 95 in November 2016, also sought his help in estate planning. However, Circuit Court Judge Jeffrey W. Parker rejected Fetner’s explanation for using the funds to pay personal expenses—including his polo team’s operations, home repairs and mortgage payments.

“It was all wishful thinking,” Judge Parker said of the plan to get a substantial return by converting funds from Roszel’s trusts to investment in the production of a safari book and/or movie. “Actions speak louder than words. The use of that money for personal expenses speaks louder than words.”

The judge awarded nearly $800,000 in damages and fees to Roszel’s estate.

Fetner had a lawyer for the lawsuit trial in February, but the Harvard Law School graduate represented himself after that and argued that the judge “ignored” his testimony that Roszel directed the reorganization of his estate planning and understood its complexities.

After assuming power of attorney and creating new trust documents for Roszel in 2009, Fetner transferred $300,000 to checking accounts under his personal control and used his own social security number to create a trust fund checking account for Roszel’s daughter. During the trial, Roszel’s family showed that his daughter received only $3,200 from the fund that was worth about $700,000. The family also claimed that he created the new trust and power of attorney documents without a witness or a notary. At his death, Roszel had an estate worth about $4 million. The pilot and World War II veteran was successful in Asian oil exploration.

Fetner contended that he “was drawn” to help his elderly friend with estate planning because of Roszel’s disagreements with his son, Bo. They were not great friends, Bo said, but the two grew closer about a decade ago. Fetner approached his father and wanted to see his father’s estate planning, he said.

In 2008, Bo knew that Fetner was reviewing the documents, but was unaware that Fetner had created new documents that removed a friend of some forty years, Bang-Jenson, and Bo as trustees of the estate. The new documents established Fetner as the successor trustee with power of attorney. After meeting with Fetner to ask about the estate planning, Bo and his siblings grew concerned. He called his lawyer after finding copies of a trust amendment and new power of attorney on his father’s desk. Shortly thereafter, Roszel removed Fetner as trustee and nullified the power of attorney, substituting Bang-Jensen and his son. They also discovered a plan to move a $2 million trust account from a local bank to a brokerage in Baltimore. The Roszels terminated that transaction.

The attorney representing the family said that in four decades of practice, this was the first time he’d seen a judge award punitive damages. He noted that he sees more cases of elderly people who are victimized by people they trust.

Reference: Fauquier (VA) Now (June 7, 2017) “Judge awards family $800k in fiduciary breach case.”

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